International separation
The separation of international couples represents a complex topic, mainly due to the potential overlapping of two or more legal systems in regulating a single case of family law. Substantially, it concerns those cases in which the spouses, citizens of different countries or residents in distinct States, decide to separate or divorce. The plurality of legal systems involved, when foreign citizens residing in Italy are involved, makes regulation necessary that can ensure legal certainty and fair management of disputes.
In the Italian context, legge n. 218/1995 has long been a point of reference, providing that separation and divorce are regulated by the common national law of the spouses at the time of the application. In the absence of such law, the law of the State where marital life was predominantly localised applies. However, with the introduction of Regolamento CE 1259/2010, many aspects of this regulation have been superseded, allowing the spouses to choose by mutual agreement the law applicable to their separation or divorce, among those strictly connected to their personal or geographical situation.
Many cases with international profiles can occur in practice. Let’s give some examples:
- Separation of a couple who married abroad: an Italian couple marries in New York, where they establish residence for some years. After the transfer of one of the spouses to Italy, the need to separate emerges;
- separation from a foreign spouse: an Italian citizen marries a Brazilian citizen in Italy, but after some years the couple moves to Brazil. When they decide to separate, doubts emerge on the jurisdiction and on the applicable law;
- residence abroad: an Italian couple, residing in London for many years, decides to part ways. English regulations differ from Italian ones, since the English legal system does not provide for compulsory legal separation as a prerequisite to obtain divorce;
- separation with minor children: a French citizen and an Italian citizen, residing in Paris, separate. The couple has a minor child and must decide on custody and residence;
- separation of foreign spouses in Italy: this may be the case of separation of foreign citizens residing in Italy, now established for years, without obtaining Italian citizenship, who married and then intend to separate.
In all these cases, which often occur in practice, issues arise relating to the applicable regulations both with reference to separation (and divorce), and to the treatment of minor children and to property issues, intertwining multiple regulations that might compete in the definition of the overall framework.
Facing an international separation, as is easy to guess, can prove a complex path, when it comes to separation between couples of different nationalities, which therefore requires in-depth knowledge of national, community and international regulations. The team of lawyers of Boschetti Studio Legale, with solid experience in family law, offers assistance and specialist advice to identify the most adequate solutions, ensuring a personalised approach respectful of the needs of both parties.
What is the law applicable to international separation
On the topic of international separation, EU Regulation n. 1259/2010 (also known as Roma III) intervened to introduce uniform rules to determine which national law applies to divorces and separations with transnational elements in the EU. It is an important step forward in judicial cooperation in civil matters, even though not all Member States participate.
The cardinal principle of the regulation is that of party autonomy: the spouses can choose by mutual agreement the law applicable to the separation, as well as to divorce, on condition that it is the law of the State of habitual residence, of the last habitual residence if one still resides there, of the State of citizenship of one of the spouses, or the law of the forum.
In the absence of a choice, the regulation provides for a series of connecting criteria in hierarchical order: first the law of the common habitual residence of the spouses at the time of the action applies, in its absence that of the last habitual residence (if not concluded for more than a year and if one still resides there), then that of common citizenship and finally that of the forum.
The regulation also provides for important protections: if the applicable law does not provide for divorce or discriminates against one of the spouses in access to divorce, the law of the forum applies. Furthermore, the application of foreign law can be excluded if manifestly incompatible with public policy.
In Italy, Legge 218/1995 regulates the jurisdiction for international separation and the applicable law, providing a safeguard: if foreign law does not provide for separation or divorce, Italian law applies. This principle ensures that the spouses can in any case obtain the dissolution of the marital bond, respecting fundamental rights. For example, a couple of Italian citizens residing in the United Kingdom can decide to start the proceeding in Italy, following European and Italian rules.
Procedures for international separation
EU Regulation n. 1259/2010 had the merit of dictating clear rules and flexible criteria on the topic of marital crises with transnational implications, allowing the spouses to consensually choose the law that will regulate their separation, limiting it to options strictly connected to their context.
The choice can fall on the law of the State of habitual residence at the time of the agreement, on the law of the last habitual residence if one of the spouses still resides there, on the law of the State of citizenship of one of the spouses or on the law of the court seised. This choice must be formalised in writing, with date and signature of both, and can take place up to the submission of the separation application to the judicial authority.
In the absence of an agreement, pre-established criteria are followed in hierarchical order: the law of the State where the spouses have their habitual residence when the procedure is started applies; in its absence, that of the last habitual residence if no more than a year has passed and one of the two still resides there; subsequently, the law of the State of which both are citizens; finally, the law of the forum where the application is submitted. To ensure predictability, the Regulation specifies that every reference to the law of a State is understood as referring to its substantive rules, excluding the renvoi to the rules of private international law. In the case of States with multiple territorial legal systems, every reference to the law of that State is to be understood as a reference to the law of the relevant territorial unit.
Specific protections ensure that, where the law identified does not contemplate the institution of separation or presents discriminations based on gender, the law of the forum applies. Furthermore, the application of foreign law is excluded if incompatible with the public policy of the State of the forum, thus protecting the fundamental rights of both spouses.
The Regulation also addresses the phenomenon of forum shopping, that is to say the practice of submitting an application for separation in the forum that offers the most favourable law. To counter this practice, it introduces clear hierarchical criteria and a mechanism of lis pendens: the court first seised has exclusive competence, blocking any parallel proceedings in other jurisdictions. This regulatory system aims to ensure equity and legal certainty, preventing abuses and protecting both parties.
The procedural path provides for the filing of the application at the competent court, with subsequent notification to the other party. In Italy, the new rules on assisted negotiation allow reaching consensual agreements, speeding up times. Furthermore, the separation can be ratified rapidly if the parties collaborate. The choice of the Studio legale for international separations is fundamental to protect the rights connected to an international separation, also in defence of minor children and of the property issues of the couple. Boschetti Studio Legale is available to help international couples to separate with the least possible conflict and the greatest useful result not only for its own clients, but for the good of the entire family, in particular of minor children.
Custody of children in international separation
Custody of children in international separations is mainly regulated by EU Regulation n. 2019/1111 (Bruxelles II ter), while EU Regulation n. 1259/2010 (Roma III) deals specifically with the law applicable to divorce and personal separation, expressly excluding from its scope of application issues relating to parental responsibility.
The Bruxelles II ter Regulation places at the centre the higher interest of the minor, providing that proceedings in matters of parental responsibility must give the minor capable of discernment the concrete and effective possibility to express their opinion. Jurisdictional competence is based on the principle of proximity: the competent court is that of the Member State in which the minor has their habitual residence, except for some specific exceptions.
In case of lawful transfer of the minor to another Member State that becomes their new habitual residence, the competence of the court of the State of previous residence remains for three months, limited to the modification of a decision on visitation rights. This ensures a certain continuity in the protection of relationships between the minor and the parent who does not move.
Particular attention is dedicated to cases of international child abduction. The regulation provides that the jurisdictional authority seised for the return of the minor proceed to the rapid handling of the application, using the most expeditious procedures provided for by national law. The decision must be rendered within six weeks, except in exceptional circumstances. It must be remembered that for cases of international child abduction, the Regulation collaborates with the 1980 Hague Convention, ensuring the rapid return of minors and fair management of disputes.
Recognition and execution of foreign judgments
Another relevant aspect on the topic of international separations concerns the recognition of the foreign separation judgment. In Europe, Regulation CE n. 2201/2003 ensures the reciprocal and automatic recognition of measures relating to separation and divorce, avoiding conflicts of jurisdiction. For example, a divorce pronounced in Spain will be recognised in Italy without the need for a new proceeding, unless it conflicts with the principles of public policy.
However, there are particular cases in which recognition can prove problematic. Consider repudiation, an institution provided for in some cultures, but contrary to the fundamental principles of Italian law, which places equality between spouses as an essential value.
The recognition of separation abroad and the execution of separation or divorce judgments issued in an international context represent a crucial element in ensuring legal certainty and the protection of the rights of the parties involved. In the Member States of the European Union, the Bruxelles II bis and Bruxelles II ter regulations establish a harmonised system for the automatic recognition of judicial decisions, providing for specific criteria, such as respect for the right to be heard and the absence of conflicts with already recognised decisions, to ensure the effectiveness of judgments in all Member States.
An element of complexity concerns the duration of separation as a prerequisite for divorce, still required in many countries. Before the 1975 reform, in Italy too it was necessary to demonstrate specific causes to obtain a separation, a feature similar to that of legal systems that today allow divorce only in the presence of restrictive conditions, such as adultery or failure to maintain the spouse.
In this framework, the principle of lex fori, that is to say the application of the law of the competent court, represents an element of balance. This criterion intervenes in cases in which foreign law makes access to separation or divorce practically impossible. For example, if a couple resides in a country where divorce is denied for religious or cultural reasons, and one of the spouses turns to the Italian court, the lex fori allows the application of Italian law, ensuring respect for fundamental rights.
As regards instead non-EU countries, the recognition of the separation issued in a foreign country is regulated by Legge 218/1995 on private international law, by which a foreign judgment can be recognised in Italy without further formalities on condition that the conditions of art. 64 exist. Such requirements include the jurisdictional competence of the foreign judge according to Italian principles, respect for the rights of defence of the parties, the regularity of notifications and default, and the passing into res judicata of the judgment in the country of origin. Furthermore, the judgment must not be in conflict with other definitive Italian rulings, nor must there be a pending proceeding in Italy on the same case. Finally, the content of the judgment must not violate Italian public policy. These criteria ensure the conformity of foreign decisions with the fundamental principles of Italian law, ensuring equity and legal coherence.
The EU Regulation Bruxelles II ter, which recasts and updates the previous system, further strengthens judicial cooperation in matters of family law, also including specific provisions on parental responsibility and international child abduction. For judgments concerning minors, it is essential to consider the principle of the higher interest of the minor, which guides decisions on the topic of custody and visitation.
This regulatory framework is conceived to ensure predictability, legal certainty and protection of the parties involved, while protecting fundamental rights. Furthermore, the close connection between the European system and international conventions, such as the 1980 Hague one, ensures an integrated and harmonious approach to the management of cases with transnational implications.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
Registering a cohabitation agreement and regularising the status of a foreign partner
A couple living in Rome, consisting of an Italian citizen and his foreign partner without valid residence documents, sought legal protection for their relationship. An urgent application under Article 700 of the Italian Code of Civil Procedure was filed to safeguard their cohabitation, followed by proceedings to obtain an EU family member residence card.
Adult adoption to legally recognise a de facto family relationship
A United States citizen living in Rome sought to formalise a long standing family relationship with his uncle by marriage through adult adoption. Proceedings were brought under Articles 291 et seq. of the Italian Civil Code to obtain legal recognition of their established family bond.
Cohabitation agreement for an Italian Brazilian couple: protecting assets and securing residence rights
An Italian entrepreneur and his Brazilian partner had been living together in Milan for three years. Their situation involved three interconnected legal vulnerabilities relating to immigration, asset protection and succession planning, all addressed through a coordinated legal strategy.
Adoption in Colombia: an Italian couple fulfils their dream after a three year journey
A couple married for eight years embarked on an international adoption in Colombia. The procedure involved two legal systems, three Italian institutions and the Colombian Central Authority, requiring careful coordination throughout every stage of the process.
Succession involving heirs in four different countries: coordinated management across Italy, the United States, the United Kingdom and Switzerland
An Italian entrepreneur left assets located in Italy, the United States and Switzerland, with four heirs residing in four different countries. The matter required the parallel coordination of four legal systems and four tax regimes.
Adult adoption of a partner’s child: legal recognition of a twenty year family bond
A fifty eight year old man seeks to adopt his wife’s thirty year old son, whom he has helped raise for twenty years. Although the relationship was genuine and long established, it had no formal legal recognition, with significant implications for the biological children’s inheritance rights.
Challenging a will for infringement of forced heirship rights: €800,000 recovered for the heirs
Two children inherited only €20,000 each under a will that left almost the entire estate to their late father’s second wife. An action to enforce their forced heirship rights was successfully resolved through mediation.
Succession planning for a family business: transferring a €3 million business to the next generation
A sixty two year old entrepreneur needed to transfer ownership of a company employing fifty people to the son who had been managing the business, while safeguarding the interests of his daughter, who had chosen a different career path. A family agreement and a holding structure ensured business continuity and long term stability.
International adoption by a single parent: when the law opens a path few people know exists
A forty five year old single woman embarked on an international adoption. Although legally possible, this route remains little known and requires a carefully planned legal strategy from the very first stage, beginning with the application for the certificate of suitability.
Digital inheritance: recovering cryptocurrencies and digital assets after death
A professional passed away leaving more than €600,000 in cryptocurrencies held across multiple wallets and exchanges, without providing any access instructions. A substantial digital estate was at risk of being lost forever.
Legal name change for a transgender person: aligning official documents with gender identity
A thirty two year old professional, who had been undergoing hormone therapy for eight years, still had official documents bearing the male name assigned at birth. This discrepancy repeatedly forced unwanted disclosure of her gender identity in professional, banking and administrative settings.
Legal gender recognition and the update of more than 20 official documents: from court judgment to a new legal identity
A forty five year old executive had already obtained a court order granting legal gender recognition but was then faced with the real challenge: coordinating the update of an identity card, driving licence, university degree, employment records, mortgage documentation and insurance policies across multiple authorities, each with different procedures.
Legal advice for international separation
Facing a separation between couples of different nationalities requires highly specialised legal assistance and in-depth knowledge of European regulations and international conventions. Boschetti Studio Legale, thanks to its team of lawyers, is an ideal choice for those seeking a Studio legale for international family law, being able to ensure complete and personalised advice to manage every aspect of transnational separations.
Our team of professionals, led by Avvocato Francesco Boschetti, thanks to the experience matured in the field can move with ease in carrying out the following services:
- Preliminary analysis to determine the most favourable jurisdiction according to the criteria of European regulations
- Complete management of issues relating to the custody of minors in international context and protection of their higher interest
- Protection of property rights with particular attention to assets located in different countries
- Assistance in the recognition and execution of decisions abroad
- Specialised intervention in cases of international child abduction
- Organisation of cross-border visitation right and determination of international maintenance
- Management of transfers of residence abroad and protection of relationship rights with both parents
- Coordination with our network of correspondents in Europe and worldwide to ensure assistance in multi-jurisdictional contexts
Our specific competence in the application of the EU Regulation Bruxelles II ter allows us to effectively protect the higher interest of the minor, ensuring that proceedings also respect the right of children to express their opinion when capable of discernment. We carefully analyse every case assessing the habitual residence of the spouses and of the minors, the nationality of the parties, the location of assets and the international fiscal implications.
We offer assistance both in the extrajudicial phase and in the judicial one, favouring, where possible, consensual solutions to minimise conflict. Our experience allows those seeking a lawyer for international separations to successfully manage even the most complex cases, always ensuring maximum confidentiality and professionalism.
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Can I separate in Italy if I got married abroad?
Yes, you can separate in Italy even if you got married abroad. Italian law allows starting a separation if one of the spouses is an Italian citizen, habitually resides in Italy or the marriage was celebrated there. Marriages registered in other Countries can also be recognised and dissolved in Italy, following the applicable Italian or international rules.
How can I assert in Italy a separation judgment issued abroad?
To assert in Italy a foreign separation judgment, the original is needed with translation and legalisation (or apostille). In general terms, foreign separation judgments are automatically recognised in Italy, if they comply with the requirements of art. 64 of legge n. 218/1995. For non-EU judgments, recognition is more complex and reference must be made to bilateral treaties between States.
What happens to children if one of the parents moves abroad after the separation?
If one of the parents moves abroad after the separation, the best interest of the minors must be safeguarded. If the transfer is unlawful, the procedure of immediate return of the minor is triggered. If instead it is agreed between the parents, the minor can move abroad, but the visitation right of the other parent must be ensured. The Hague Convention explicitly protects this right of the non-custodial parent to maintain regular contacts with the minor child.
